Local Open Government Blog : Open Government Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

The ongoing controversy over a City of Pasco annexation authorized by legislation adopted by the State Legislature in 2009 (ESSB 5808), has resulted in broad requests for City public records. The requests are so expansive as to cause substantial delay in production of the public records. This is not an unusual occurrence, as the Public Records Act (PRA) is regularly used as a political tool against public agencies. This approach is completely permissible under Washington law, as a requester need not identify the purpose for the records request. Washington has regularly recognized that the often substantial cost of compliance, even in the face of an unjustified records request, is outweighed by the policy supporting public access to documents. The Legislature and courts have only responded to date with respect to prisoner's suits under the PRA. See January 20, 2011 posting on this blog.

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In an editorial on December 9, 2011, the Walla Walla Union-Bulletin commented as follows:

Dec. 09 -- The budget discussion between Sheriff John Turner and the three county commissioners got heated this week when it veered off course.

Instead of focusing on the specifics of the budget, the meeting became a debate over whether commissioners Gregg Loney, Greg Tompkins and Perry Dozier should meet individually with Turner and his command staff to discuss and develop strategic plans for the Sheriff's Office.

It is simply not the job of the county commissioners to help develop strategic plans for the Sheriff's Office. That is the sole responsibility of the county sheriff, who is directly elected by the people of Walla Walla County.

The Board of County Commissioners is a legislative body. The commissioners are elected to oversee the overall operation of the county, which includes establishing the budget.

The three commissioners, however, are not the sheriff's direct boss. The people are the sheriff's boss.

The expectation is that the sheriff oversees the Sheriff's Office and establishes polices and develops strategic plans. The sheriff makes a budget request to the commissioners, who then allocate funding based on those plans as well as other factors such as the needs of other county offices and how much money is available.

Holding private meetings on a regular basis between individual commissioners and the sheriff is unnecessary.

That's the case whether it is the sheriff or any of the other independently elected county officials. The auditor does-n't develop strategy with the commissioners on how to run an election nor does the coroner develop with commis-sioners policies regarding autopsies.

The three commissioners said they would be willing to discuss various issues with Turner in a public meeting that is recorded -- just like all commission meetings.

"That way we all hear the same thing and they are recorded for the public to listen to, and then I would be willing to do that. And I've told the sheriff that, too," Tompkins said.

Exactly. The people's business should always be done in public.

Turner, however, has concerns about meeting in public.

"You know that plan doesn't work because when it comes to tactics and how we deploy people (and) when we talk about the tremendous civil and safety liability issues to the office, that's not for the public," he said.

It was suggested by a commissioner that when sensitive topics come up the commissioners and sheriff could meet behind closed doors in an executive session with their attorney.

Absolutely not. We do not believe that would be legal under the state's Open Public Meetings Act. The law nar-rowly defines the subjects for which meetings can be closed, things such as personnel matters and pending litigation. Strategic plans for law enforcement do not apply.

Developing strategic plans is best done by the sheriff and his command staff. And after those plans are developed the commissioners -- in public -- provide oversight through the budget process.
___

Visit Walla Walla Union-Bulletin (Walla Walla, Wash.) at union-bulletin.com.

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On November 25, 2011, Sharon Salyer of The Herald reported on Everett School Board planning to hold a forum early next year to discuss open government. The following is a reprint of the article in full:

Controversy has swirled around the Everett School Board all year over openness and transparency.

The school board now plans to hold a forum early next year to have outside experts discuss issues such as the state Open Public Meetings Act and the steps involved in getting records from government agencies.

Ed Petersen, school board president, suggested during a meeting Tuesday night that the school district contact a nonpartisan group, such as the League of Women Voters. The group could help select the experts who would speak on the state's open-government laws.

The goal is to have the event in January or February, Petersen said. It would give the public an opportunity to talk about openness in government.

"The benefits we're looking for are a better informed community and information from those who attend to help us in our operations," he said.

The idea for the forum was first proposed in September, as the School Board was wracked with controversy following a scuffle among three members, Petersen, Kristie Dutton and Jessica Olson.

Olson has often been at odds with other board members since being elected in 2009. Fellow board members have censured her twice this year.

At the same meeting that the school board was considering Olson's second censure, planner Reid Shockey of Everett suggested the special public meeting, which would include a panel of experts discussing open government and the state Open Public Meetings Act.

In other business during Tuesday's School Board meeting, board members discussed whether to grant a request from Olson to see unredacted copies of legal invoices or bills since June from a Seattle law firm which advises the school district.

Board member Jeff Russell said he was concerned about Olson's request to view unredacted invoices because they contain private and confidential information about staff, students and families.

"We rightly place conditions upon the viewing, copying, reporting or moving of such records," he said.

Dutton asked for Olson to sign a document saying that she would not remove any of the documents or post them on social media sites or in other way violate the privacy rights of those involved in legal issues.

"We have had Director Olson's assurance before that she would not copy or take the invoices and she did exactly that," said board member Carol Andrews.

Olson asserted that the legal invoices are not confidential. "They're the public's documents," she said.

Student names are abbreviated or initials are used, she said. Her earlier review of the legal billings showed "there was not one piece of information ... required to be redacted."

"We're telling the public that the invoices belong to the district and not the public," she said. "Each one of us is duly elected by the citizens. We have the right to go in and look."

The School Board voted not to allow Olson to see the unredacted invoices. However, Andrews later suggested that the board allow all board members regular access to redacted attorney invoices.

The motion was made after Olson left the meeting after approximately three hours due to a scheduling conflict. That motion was approved unanimously for the four remaining board members.

 Sharon Salyer: 425-339-3486; salyer@heraldnet.com.
 

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On Friday, Ted Sickinger of The Oregonian reported on changes to the Oregon Public Employees Retirement System that allow public disclosure of individual members' information. The following is a reprint of the article in full:

The board of directors of Oregon's public employee retirement system voted 3-to-1 Friday to change its rules to allow the public disclosure of members' individual benefits.

The administrative rule change reflects a legal settlement that PERS reached earlier this year to release benefit information to The Oregonian and the Statesman Journal in Salem on Nov. 21 for 110,000 individual retirees.

The PERS Board was quick to note the release is still contingent on a hearing Monday in Marion County Circuit Court, where a group of retirees has filed a class-action lawsuit seeking to prevent release of the information.

"It's out of our hands -- above our pay grade," said James Dalton, a former technology executive who chairs the PERS Board. "It's in the court system and we'll abide" by what the court determines.

The Oregonian has long sought access to such information as part of its reporting on the retirement system's costs and financial difficulties. PERS previously released individually identifiable pension benefits, but started denying requests for such information on all but the most prominent public employees in 2002, saying the information was exempt from public records laws.

Attorney General John Kroger changed that course last October, ordering the agency to release individually identifiable benefit information to the two newspapers.

Pat West, a former Salem firefighter who sits on the PERS board, was the lone vote against the rule change. He said he opposed the data release, which he contends could make retirees marks for financial scams.

The rule change was administrative to align policy with the settlement, and has no bearing on whether the data is releasable, board members said. But they were heavily lobbied by retirees to vote against it.

The Oregonian has intervened in the employees' lawsuit. Its lawyer, Portland attorney Charles Hinkle, says he hasn't seen issues related to the release of similar data in other states, and is confident the court will agree with the Attorney General.
 

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A Washington State Court of Appeals recently held that an inmate’s public records lawsuit against the State of Washington Department of Corrections (“DOC”) was time-barred, and therefore properly dismissed. Johnson v. Wash. State Dep't of Corrections, Case No.40831-7-II, 2011 WL 5345375 (Wash. Ct. App. Nov. 8, 2011).

Inmate Robert Johnson's claim concerned the DOC’s Extended Family Visiting policy (“EFV”). The EFV policy allows an offender to receive private visits from family. Under early versions of the policy, inmates could participate in the EFV program only if they had a “positive prognosis of release”, that is if they would outlive their sentence. Johnson was ineligible for participation in the EFV program, and filed a complaint in federal district court in 2005. The DOC subsequently changed its policy as of June 8, 2006 (though not as a result of Johnson’s claims), eliminating the “positive prognosis of release” requirement.

In August 2006, Johnson sent a public records request to the DOC’s Public Disclosure Unit requesting information about the EFV policy revision. The DOC advised Johnson that the only responsive record was one email documenting approval of the policy change. Johnson received the record in early September, 2006. Over the next few months, Johnson submitted a duplicative public records request to various DOC Public Disclosure officers seeking the same information identified in his original request. After a series of searches and additional communications with the DOC, the Department sent Johnson a final letter on August 27, 2007, noting that Johnson had already received the sole responsive document, and that his request was considered closed. Over two years later, another requestor, Melinda Carter, sought the same information as Johnson. Carter was provided with nearly 300 pages of documents in response to her request.

In December 2009, Johnson filed a Public Records Act (“PRA”) action to compel production of records that the DOC ostensibly withheld. Johnson contended that the DOC violated the PRA by only disclosing a single email when he had requested all records pertaining to the EFV policy change. He cited Carter’s request and DOC’s 300-page response as evidence to support his claim. The superior court denied Johnson’s motion and dismissed his PRA action. The Court of Appeals affirmed, finding Johnson’s arguments were time-barred.

The PRA statute of limitations provides that a plaintiff must file an action within one year of either (1) an agency’s claim of exemption from disclosure requirements, or (2) an agency’s last production of a record on a partial or installment basis. RCW 42.56.550(6). Johnson claimed that the DOC had not produced a last record in this matter, since he had only received a single email. He believed there were many more documents available based on his knowledge of the quantity of documents provided to Carter. On this basis, he argued that the statue of limitations had not been triggered. The Court rejected this argument, finding that some statute of limitations applied – either the one year statute under the PRA, or the more generous two year “catch all” statute of limitations for civil actions. RCW 4.16.130. The latest that Johnson might have received the final DOC letter, dated August 27, 2007, would have been early September of 2007. He filed his request more than two years later, in December 2009. Under either statute of limitation, Johnson’s claim was time-barred.

An important note for both agencies and requestors alike, is that the PRA’s one year statute of limitations applies in narrow circumstances: when an agency has claimed an exemption, or after the last production of a record on a partial or install meant bases. If these two factors are not met, then the one year limitation under the PRA does not apply. The general two year “catch all” statute of limitations under RCW 4.16.130 applies instead. See Tobin v. Worden, 156 Wn. App. 507, 233 P.3d 906 (2010) .

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A Federal District Court in Connecticut recently ruled that the Middletown Common Council did not violate the First Amendment when it passed a resolution limiting speech during televised Council meetings to items on the agenda. Smith v. City of Middletown, 2011 WL 3859738 (D.Conn. 2011).

Prior to October 2006, the Council reserved the beginning of Council meetings for the public to speak on topics not on the meeting agenda. This segment of the meeting devoted to non-agenda items was televised. In October 2006, the Council unanimously voted to change the Council meeting format to move the segment on non-agenda items to the end of the Council meeting and to not televise that segment. Members of the public were still allowed to address the Council regarding items on the agenda during the regular Council meeting, which continued to be televised.

In 2009 the Council voted again to alter the format of the Council meetings by terminating the segment on non-agenda items. In its place, the Council began holding monthly meetings at different locations in the community where member of the public could discuss issues not included on the Council meeting agenda.

Following the 2009 format change, Lee Smith and Donna Gagnon-Smith sued the Council claiming that the rule changes were intended to limit their free speech rights under the First Amendment of the Constitution. The Smiths regularly spoke before the Council on non-agenda items and even one Council member admitted that one of the reasons for changing the format of the Council meetings was to “turn off the cameras” for “a couple” that spoke before the Council “all the time.”

The Federal District Court of Connecticut reviewed the actions of the Council under the rules governing limited public forums. The Ninth Circuit has similarly held that city council meetings are limited public forums. White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990). In a limited public forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint neutral. Applying this test, the Connecticut court held that the Council was entitled to restrict public comments at Council meetings to topics on the agenda, because an individual’s viewpoint does not affect whether they are permitted to speak. The court also held that the fact that the Council may have been motivated to institute the format change to restrict the Smiths’ speech is irrelevant, because the rule actually passed by the Council was viewpoint neutral. See Hill v. Colorado, 530 U.S. 703 (2000). Therefore, the court held that the Smiths had not suffered a deprivation of their First Amendment right to freedom of speech and dismissed the action.

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The nomination of Solicitor General Elena Kagan to the Supreme Court prompted document requests to the Department of Justice (DOJ). The D.C. District Court recently upheld a DOJ determination that records from the office of the Solicitor General were exempt from disclosure under the Freedom of Information Act (FOIA). The records either were privileged or were not “agency records” subject to disclosure. Media Research Center v. U.S. Department of Justice and Judicial Watch v. U.S. Department of Justice, 2011 WL 4852224 (Oct. 13, 2011).

In response to FOIA requests, DOJ began an electronic search of its files encompassing the dates of Justice Kagan’s tenure as Solicitor General. The search identified 1400 pages. After review, DOJ concluded that 86 pages were responsive to the requests under FOIA.

DOJ released 45 of the 86 pages, and withheld 41 pages under two theories: first, that they were not “agency records,” and second, that they fell under the “work product privilege” (exemption 5 to FOIA). DOJ released a log (often referred to as a “Vaughn Index”) providing its reasoning for every withheld or redacted document.

Plaintiffs challenged: 1) the adequacy of the initial search; 2) the determination that the 41 pages were not “agency records;” 3) the claim of attorney work product on six redacted documents; and 4) the claim concerning the deliberative process privilege.

1. Adequacy of the Search. The Court concluded that DOJ’s search of its paper, electronic, and email files was adequate, and that plaintiffs’ conjecture that there should be additional records was insufficient to justify a different conclusion. See, Weisberg v. Department of Justice, 705 F.2d 1344 (D.C. Cir. 1983); Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir. 2003) (agency’s search must be reasonably calculated to uncover all relevant documents, measured by the search methods and not by the results of the search).
    
2. Agency records. In rejecting the Plaintiffs request for the Solicitor General’s correspondence about her nomination to the Supreme Court, the D.C. Circuit Court found the correspondence “was not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective…the documents were personal, not attributable to the agency, and therefore were not “agency records.”
    
3. Exemption 5 to FOIA, and the “Work Product Privilege.” Exemption 5 to FOIA allows an agency to withhold records that would be privileged from discovery during litigation. This exemption incorporates the work product doctrine and the deliberative process privilege. Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). Applying Exemption 5 and the attorney work product doctrine, the court rejected plaintiffs’ argument that a specific claim is necessary to invoke the doctrine. Instead, an objectively reasonable belief that litigation is a real possibility triggers the privilege. The Court did not reach the deliberative process question.

For reference to Washington’s PRA exemptions for attorney-client and other privileges that may give rise to exemptions from disclosure, see WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities.
 

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As we reported here on January 31, the Washington Supreme Court heard argument on the reach of the Public Records Act (PRA) in the digital age. On September 29, 2011, the Court decided this case (Neighborhood Alliance of Spokane County v. Spokane County). The Supreme Court found that Spokane County violated the PRA by not searching the hard drive of a computer that had been recently used by the person who generated a specifically requested document.

The document being sought was a seating chart of the County’s Building and Planning Department where the names of the new occupants (one of whom was the son of a County Commissioner) had allegedly been placed on the seating chart some time before the employment selection process was even completed. The date that the seating chart was first created was therefore crucial. But the County made no effort to look for the document on the hard drive of the old computer just recently used by the person who had generated the chart. The Court held that a search of the digital hard drive on the old computer was mandatory in these circumstances.

Not only had the County not searched for electronic records that were requested where those electronic records could easily have been searched, but the County later refused to answer interrogatories about its actions in the PRA lawsuit eventually brought by the Neighborhood Alliance. In perhaps the most far reaching part of its decision, the Supreme Court held that a PRA lawsuit is like any other, and the defendant agency must respond to reasonable discovery requests, including interrogatories and depositions, unless it is first able to secure a protective order from the court.

In other parts of the case, the Supreme Court held that (1) the remedial penalties of the PRA are triggered when the agency fails to disclose and produce records, and any later release of the documents only serves to stop the clock, but not eliminate, the daily penalties; (2) no causation is required to prevail in a PRA lawsuit – subsequent events and subsequent disclosure do not affect the wrongfulness of the agency’s initial failure to disclose the documents; (3) when the trial court finds that the PRA has been violated, daily penalties are mandatory, and only the amount is subject to the trial court’s discretion; (4) the fact that the requestor of documents may already have a copy of the documents does not relieve an agency of the obligation to produce those same documents in response to the request; and (5) there is always an obligation to “disclose” the existence of requested documents, even if there is an exemption from an obligation to “produce” the documents.
 

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Division II of the Washington Court of Appeals has upheld a trial court’s decision to group documents into two categories, thereby lowering the penalties against the Washington Dept. of Labor and Industries (L&I) from over to $500,000 to approximately $30,000. Bricker v. Washington State Department of Labor & Industries, __ Wn.App. __, 2011 WL 4357760 (September 20, 2011).

Ken Bricker is a former contractor who owned a home at which he did his own electrical work. An L&I inspector issued a citation related to the work. Bricker appealed, and sent a letter to the inspector, in which the Public Records Act (PRA) was not mentioned, asking for “a copy of all permits issued and copies of inspections and correction requests by all inspectors at that residence.” The L&I inspector filed the letter, assuming that the records would be made available during the contested hearing over the citation.

Bricker then made several attempts to obtain the records, including telephone calls to L&I personnel who did not recall the calls. It turned out that there were somewhere between 3 and 16 responsive records. Bricker both overturned the citation and won the PRA trial where he was originally awarded penalties totaling over $500,000.00. But the trial court later reconsidered, and broke the documents into two groups, the original 16 records and 3 other records that were duplicates, except for signatures. The trial court awarded $90/day for the first group and $15/day for the second group, stating that the PRA was about accountability, but absent bad faith, the PRA is not meant as compensation for damages.

Bricker appealed the trial court’s reconsideration, which changed the award from a per-document per-day award to a per-group per-day award, reducing the award to just under $30,000.00 plus attorney fees. L&I cross-appealed the high-end award, claiming out that, absent bad faith and with less culpability that in a prior case in which a $45/day penalty was found appropriate, the high end range (the maximum penalty is $100 per day) was an abuse of discretion.

The Court of Appeals affirmed the trial court on both issues.. With respect to the L&I claim that the high per day penalty was error, because there was no bad faith, the Court of Appeals noted that Bricker’s request for documents was clear, the agency made no response even after Bricker followed up on his request, and the L&I inspector had received no PRA training and made no inquiries about how to handle Bricker’s request for information.

On the other hand, in response to Bricker’s appeal, the Court held that it is not an abuse of discretion for a trial court to decline to award penalties for each document per day. Pointing out that other courts, including Yousoufian, had upheld awards based on categories of related documents, this Court approved the trial court’s effort to assess different penalties for different groups of documents, to which (as a group) different Yousoufian factors applied.

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